Complainant

Respondent

Parties

Laurence  O'Malley

Foyln Electrical Services Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Sean Heading Connect Trade Union

Tommy Dalton Crowley Millar Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055011-001

12/02/2023

The Complainant commenced employment with the Respondent on 3 February 2018.  His employment ended on 20 December 2022.  He worked 40 hours per week and was paid €630 gross per week. A complaint form was received by the WRC on 12 February 2023.

The Respondent provided a written submission.

The Respondent submits that the Complainant was dismissed for reasons of gross misconduct. The Respondent denies that there were any outstanding wages owed to him.

The respondent denies the Complainant was “fired on the spot without reason.”  The reason he was dismissed was because he was guilty of gross misconduct on 19 December 2022 at a premises in Glin for undertaking work on his own which he had been expressly forbidden to do because of a previous incident.

The Respondent denies the Complainant was assaulted. 

Mr Ciaran Lynch, a Director of the Respondent company, gave evidence on Oath at the hearing.

At the outset of his evidence Mr Lynch accepted that he had not followed proper procedures in relation to the dismissal.  He stated that on 22 December 2022, he had received a call from a customer giving out about a broken mirror.  He then spoke with the Complainant and asked him if he had broken a mirror. The Complainant replied, “you owe me money.” Mr Lynch then told the Complainant to “hop off” his property. There ensued an altercation with the Complainant; the witness denied he had grabbed the Complainant by the neck.  The witness called the Gardai.

Continuing in evidence Mr Lynch explained the need for two people to install mirrors and there had been an issue about this previously with the Complainant.

In cross examination, Mr Lynch stated that he had sacked someone (the Complainant) who didn’t answer a question; it was because of his attitude.  He knew the Complainant had something to do with the broken mirror but he did not find out for sure who had broken the mirror until after the had dismissed the Complainant. When asked if he had dismissed the Complainant because he had asked for backpay, the witness said no (he had not).

A Mr Leslie Cowper, a Director of the Respondent Company, gave evidence on Oath at the hearing.

Mr Cowper stated that he had been in Glin working with the Complainant when the mirror was broken. He saw the Complainant with a broken mirror and he was not pleased.

In cross examination, he agreed there was some confusion about the date the mirror had been broken but he was sure about the circumstances in which it was broken, the witness stated that he had not discussed the matter with the Complainant.

In concluding, the Respondent put conceded that the company did not follow procedures.  Regarding loss, the Respondent estimates the Complainant’s loss up to 18 May 2023, as €1,890. Finally, the Respondent denies dismissing the Complainant for raising the issue of back pay.

The Complainant provided a written submission.

The Complainant submits that on 20 December 2022 he approached Mr Ciaran Lynch and asked him when he would the company be paying the back money which had been due from 1 February 2022 an altercation ensued during which Mr Lynch told the Complainant to “f**k off, you’re done, hop, you’re fired”.

The Complainant gave evidence on Affirmation at the hearing.

Mr O’Malley stated that on 20 December 2022, he arrived to work and enquired of Mr Lynch about his rate of pay and the back dating of wages.  Mr Lynch told him that there would be no back dating and that if he wanted to, he (the Complainant), could go to the Small Claims Court.  The Complainant stated that Mr Lynch told him to f**K off several times. There ensued an altercation between the two men. When the Gardai arrived Mr O’Malley told them he wished to make a complaint against Mr Lynch.

The Complainant stated that nothing was mentioned about a broken mirror until after he had been dismissed.

In cross examination, the Complainant agree that there had been an incident in Glin and that he had broken a mirror, however there had been no mention of a mirror the day he was dismissed. He also stated that he did not know that the company was challenging the SEO.

In concluding, the Complainant’s representative put forward that back pay was not an issue in front of the WRC; the only issue to be decided was the fairness or not of the dismissal of Mr O’Malley.  The Representative reiterated that the Respondent has accepted that proper procedures were not followed. In addition, there was no attempt to sort the problem out; the Complainant was dismissed without any explanation.  If there had been a performance issue, he should have been warned but this never happened.

Regarding mitigation of loss, the Complainant explained that he commenced employment with another employer on 23 December 2022. However, this was casual work at lower hourly rate than he had enjoyed with the Respondent. He returned t electrical work approximately one month after his dismissal. The Complainant believes he loses amount to between €2,000 to €2,500.

There is a conflict of evidence apparent in this case. However, it is obvious and conceded by the Respondent, that no procedures whatsoever were followed in the lead up to the dismissal. It was an instant, on the spot dismissal of an employee, in a fit of anger.

 Section 6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

In this instant case it is clear that no procedures were contemplated let alone followed.

Section 7 of the Act states:

( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

An employer has many rights and along with those rights come important responsibilities to his or her employees, in this case those responsibilities were totally and utterly ignored

I find that the Complainant was unfairly dismissed and is due an award of compensation. In making this award I take into account the precipitous nature of the dismissal and the disregard the Respondent demonstrated for the tenets of Natural Justice.

In the circumstance I believe an award of €4,000 is just and equitable.

This was an unfair dismissal and I award the Complainant €4,000.00

Procedures, on the spot dismissal.